Wednesday, November 24, 2004
alford's plea
scotusblog lists several new oral argument transcripts up.
alford was a suspicious looking character with flashing light on his car, a ham radio, handcuffs, and a tape recorder. he stopped to help some motorists change a tire, and gave them a flashlight. real cops showed up, he left, they chased, and arrested him for taping their conversation, rodney king style.
my brother has a story about some new jersey cops who took his camera when he tried to document a crime scene. my brother didn't sue, but wasn't arrested either, they just took the camera.
alford sued for false arrest - he had shown the cops the court case saying it was legal to tape a cop. the jury awards nothing. i -think- the case is about jury instructions, although they were unobjected to at the time.
cops argued they could have probable cause to arrest him for something else,and sought qualified immunity under the bad faith rule of saucier. very roughly, cases like saucier and fitzgerald hold that even when this cop is acting in bad faith, if some reasonable cop somewhere could have acted that way, cop gets off.
ninth circuit reverses, says, the "something else" for which he could have been arrested has to be pretty close to what they said they were arresting him for.
5 other circuits agree.
some of the justices want to apply the 9th circuit overrule rule and automaticly reverse. they think this would just teach cops not to tell people why they are being arrested.
this -isn't- a case seeking a rule that cops have to tell you why you are being arrested. such rules are statutory where they exist, or possibly are under state constitutions. but without such a rule, it's harder to follow the argument in this case, or the reason for the closely related rule.
now, i think alford should win, normatively.
I'm not sure he has five votes on this court, or even four.
I'm less clear about the jury issue - he's had one bite at the apple already and lost, and i'm rationally ignorant of exactly what happened procedurally.
I think the closely related rule should be upheld.
One thing they could do would be to dismiss as cert improvidently granted -
the state's argument was a lot weaker on the facts than the court expected.
If the overrule, they could remand for further proceedings in which Alford could still win.
They could decide that due process requires arrested people be told why they are being arrested. That's how I would vote. But I not expect this outcome - maybe it'll get mentioned in a concurrance or dissent, e.g. Stevens.
This case, of course, has nothing to do with an Alford plea. That's where you plead, ok it looks like i'm guilty, so i won't contest the charges, but i didn't really do it.
So why I am bothering to read this stuff and write about it? It's raining. I had few other plans. It's part of gradually ramping up to be productive again some day.
I've been doing nothing for while. I'm beginning to get out more socially, where more is anything greater than zero. I'm still not really getting any work done.
This is sort of work-like behavior, briefing cases,so when it comes time to sit down and write some memos I need to write the process will be familar.
scotusblog lists several new oral argument transcripts up.
alford was a suspicious looking character with flashing light on his car, a ham radio, handcuffs, and a tape recorder. he stopped to help some motorists change a tire, and gave them a flashlight. real cops showed up, he left, they chased, and arrested him for taping their conversation, rodney king style.
my brother has a story about some new jersey cops who took his camera when he tried to document a crime scene. my brother didn't sue, but wasn't arrested either, they just took the camera.
alford sued for false arrest - he had shown the cops the court case saying it was legal to tape a cop. the jury awards nothing. i -think- the case is about jury instructions, although they were unobjected to at the time.
cops argued they could have probable cause to arrest him for something else,and sought qualified immunity under the bad faith rule of saucier. very roughly, cases like saucier and fitzgerald hold that even when this cop is acting in bad faith, if some reasonable cop somewhere could have acted that way, cop gets off.
ninth circuit reverses, says, the "something else" for which he could have been arrested has to be pretty close to what they said they were arresting him for.
5 other circuits agree.
some of the justices want to apply the 9th circuit overrule rule and automaticly reverse. they think this would just teach cops not to tell people why they are being arrested.
this -isn't- a case seeking a rule that cops have to tell you why you are being arrested. such rules are statutory where they exist, or possibly are under state constitutions. but without such a rule, it's harder to follow the argument in this case, or the reason for the closely related rule.
now, i think alford should win, normatively.
I'm not sure he has five votes on this court, or even four.
I'm less clear about the jury issue - he's had one bite at the apple already and lost, and i'm rationally ignorant of exactly what happened procedurally.
I think the closely related rule should be upheld.
One thing they could do would be to dismiss as cert improvidently granted -
the state's argument was a lot weaker on the facts than the court expected.
If the overrule, they could remand for further proceedings in which Alford could still win.
They could decide that due process requires arrested people be told why they are being arrested. That's how I would vote. But I not expect this outcome - maybe it'll get mentioned in a concurrance or dissent, e.g. Stevens.
This case, of course, has nothing to do with an Alford plea. That's where you plead, ok it looks like i'm guilty, so i won't contest the charges, but i didn't really do it.
So why I am bothering to read this stuff and write about it? It's raining. I had few other plans. It's part of gradually ramping up to be productive again some day.
I've been doing nothing for while. I'm beginning to get out more socially, where more is anything greater than zero. I'm still not really getting any work done.
This is sort of work-like behavior, briefing cases,so when it comes time to sit down and write some memos I need to write the process will be familar.
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